Blog

Are Succession Planning and Probate the Same Thing?

Posted on September 29, 2016

Family law is one of the most important sections of law for one very important reason: Almost everyone will come in contact with it at some point.

Whether it’s through dealing with the estate of an elderly relative who has passed away, or setting up your own will for your loved ones, or even getting a medical power of attorney for a sick relative, family law is fairly ubiquitous.

While most of the family law terms (estate planning, last will and testament, etc.) are fairly straightforward, 2 of the most commonly asked about are probate and succession planning.

The 2 terms both deal with determining who will be receiving certain passed-on items, but they are functionally quite different.

Succession Planning

family-on-beachThis deals almost exclusively with businesses, and determining who will take the reins over in the case of the current owner retiring or passing away.

You might think that the transfer of ownership is a simple process, but for a business to stay successful, there are quite a few questions that should be asked first:

  • Will I transfer ownership while I’m still alive, or will it be upon my decease?
  • Will I transfer all of my responsibilities to one person, or split them among a few?
  • Will I require a training period for my successor?
  • Will I require a board of directors’ oversight for my successor even though I did not have one?
  • Will I incentivize current key personnel to stay (through raises or promotions) in order to help my successor through the change?
  • If I transfer business ownership outside of my family, will I stipulate that they be placed inside the loop somehow in order to continue providing for them?

These are just a few examples of the questions that should be asked when one is considering business succession planning, and they are ones that a business attorney will be able to walk you through in detail.

Probate

This deals mostly with families, and estates. Essentially, the probate process is:

  • Determining whether a will is legally valid
  • Cataloging the deceased’s property
  • Determining the value of all the property in question (appraising)
  • Taking the value of all property and cash/accounts, and paying taxes/debts, then
  • Spreading the remaining property/money according to how the will or state law (if there is no will) dictates.

Probate as a process is one that should best be avoided, since all it will end up doing is costing a deceased’s loved ones money and time. With a detailed and comprehensive estate plan, you can usually avoid probate altogether.